IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MWANZA AT MWANZA ADMINISTRATION APPEAL No.14 OF 2011 (From Magu District Court Administration Appeal No 3 of 2011) (Original Magu Urban Primary Court PC Administration cause No 19 of 2011) ELIZABETH MOHAMED asesssserssseeee seneeessen APPELLANT Versus ADOLF JOHN MAGESA....... essaeeee eeseneeen ++ RESPONDENT 10 JUDGMENT MRUMA, J. Upon the expiry of John Cosmas Magesa, Adolph John Magesa, the respondent herein, sought and was appointed an administrator of the estate he claimed was John Cosmass’s in Magu Urban Primary Court. Following objections, protestations and prayers from Elizabeth Mohamed, the appellant herein, the Primary Court of Magu decided that the three children of the 1-37- ellant i: a whom she Undisputedly mothered with the late John osmas Magesa are entitled to inherit from their father’s estate. Adolph John Magesa, who himself is the son of the late John Cosmas Magesa was aggrieved and successfully appealed to the District Court of Magu which after hearing the parties on appeal reversed the decision of the Primary Court and observed that:- “If the respondent and the deceased had such sexual association, the three children the respondent alleged to have mothered with the deceased, were born of an adulterous association {0 and therefore they cannot inherit from the fathers side upon the father dying intestate” The District Court went on to conclude that:- "In the event therefore, the order by the trial court to invite the respondent and her illegitimate children to share the fruits in the estate of the deceased John Cosmas Magesa is set aside” In reaching that decision the District Court cited with approval the decision of the Court of Appeal of Tanzania in the case of Violet Kahanqwa Vs Mrs Eudokia Kahangwa (199 R72. AOThe appellant Elizabeth Mohammed was aggrieved by the decision of District Court which quashed and reversed the decision of the Primary Court and she has appealed to this court, This is therefore the second appeal and this being the second appellate court is not easily disposed to disturb the findings of the facts except where it will be necessary and where the findings of the two courts below will be seem contradicting each other. Briefly the facts as reflected in the records of the two courts below are simple and straight forward; the deceased John to Cosmas Magesa contracted a Christian Marriage with Juliana Gerald at Kondoa in 1988. Their marriage was blessed with two issues, Adolf John (the respondent herein) and Anna John. The deceased who was working as a medical officer died intestate on 31% December, 2010. Admittedly also is the fact that before his death the deceased was living and/or cohabiting with two other women among them Elizabeth Mohamed (the appellant), with whom he had “contracted’ a customary law marriage as “evidenced” by Payment of a dowry of T.shs 300,000/= to the appellant’s Qo Parents. According to the appellant this was done in the year 3-™ 2002. She was married by the a in Magu and lived there for sometimes but later on they moved and lived at Nyakaboja village. At nyakaboja they owned among other assets a medical store which she operates herself. That is in the undisputed evidence of Elizabeth Mohammed. It can also be traced in the testimony of the respondent himself who is quoted to have told the trial court that:- “Marehemu alikuwa na miji mitatu, .mkubwa ukiwa Magu. Katika Mji wa Katikati kuna watoto lakini sipaswi kuwaweka katika faili hili kwa kuogopa kutenda dhambi kushuhudia watoto wa nje ya Ndoa” Further this is found in the testimony of Henry Magesa, the deceased’s elder brother who stated in cross-examination that:- " Alikuwa na wake 3, wa ndoa 1 na wengine wawili, Mke wa tatu aliachiwa assets za mle ndani” Therefore the issue of the deceased having another woman and children is not in dispute at all. What is disputed is whether the three children whom the deceased begot with the appellant 20 4are entitled to inherit from the estate of their father. The Primary Court was of the view that they are entitled while the District Court was of the view that they are not. The appellant is challenging the findings and decision of the District Appellate court on four fronts as follows; 1. That the first appellate court misdirected itself in entertaining an appeal which was not legally/procedurally before the court. 2.That the first appellate court erred in law and fact in including into the estate of the late John w Cosmas Magesa the house in Bunda and Nyakaboja and other properties which did not belong to him, rather the appellant Elizabeth Mohammed [sic] 3.That the first appellate court misdirected itself in not considering the fact that since the appellant was not legally married to the deceased properties belonging to her could not be included into the estate of the deceased, and-—at- appellate court erred in law and in fact in deciding that the children born as a result of the appellant and the deceased's relationship were illegitimate and therefore not entitled to part of the estate. 4. That the first During the hearing of this appeal, Mr. Mhingo, learned advocate who represented the appellant abandoned his first ground of appeal and proceeded to argue the 2™ to 4" grounds. Starting with the fourth ground of this appeal, Mr. Mhingo, LO contended that the evidence on record shows that the deceased is survived by three wives and five children. He said that there is undisputed evidence to the effect that the deceased married his first wife in accordance with Christian rites but subsequently he married two other wives in accordance with customary laws. The counsel further stated that there was sufficient evidence in the records of the two courts below that the deceased clan and the society surrounding them recognized the two other wives together with their children as the wives and children of the deceased QO and that is why, he argues; the clan meeting held on 6" January, 2011 was attended by all wives including the first wife 6~U2- Juliana Gerald and the last wife Pendo Zablon and their children. In his reply, the respondent who was unrepresented stated simply that his father the late John Cosmas Magesa was living a Christian life and he died and he was buried as a Christian. He said that no evidence was produced in the primary court for the alleged payment of dowry so as to legitimize the deceased marriage to the appellant. He conceded however that there was a family meeting held after the burial of the late John cosmas, and that the two other wives including the appellant WO attended that meeting together with their children but he quickly contended that he did not agree and was not happy with their attendance though he did not challenge it because being a child he could not be heard by the clan elders. Now looking at these facts and the arguments of the parties before me, the basic question I am called to determine by both parties is not real on the legality of the second marriage (i.e. the appellant’s marriage to the deceased), but legitimacy of the issues of that marriage. . Mr. Mhingo’s contention is that the deceased having paid 20 dowry to the parents of the appellant, and having introduced 7~ 4S. her and the appellant having being accepted by the deceased family, she was a legal wife of the deceased and the children she begot with the deceased are legitimate children and have rights to inherit from their fathers estate just like the respondent and his sister Anna. In cementing his argument, Mr. Mhingo referred me to a decision of this court in the case of Chacha Malima Vs Mwita Kitogo (1986) TLR 117 at ‘pe 4119. There, Katiti J, of this Court (as he then was), said in relation to legitimating an illegitimate child that:- “According to the provisions of Rule 181 AandB ofthe {0 Customary Law (Declaration) Order 1963, there are two ways either of which may serve to legitimate an illegitimate child-each being tied to one constant denominator condition precedent, and that is, it is the father of the child whether named by the mother or is acceptably the natural father-who may legitimate the illegal child:-(1) by either marrying the mother or (2) without marrying the child's mother by paying by paying T.shs 100/= Since the Order referred by Katiti J, speaks of certain relationship, that is to say; being biological father of the child 2D and/or being acceptably natural father of the child, without more, on my side, I would infer that the only relations to beconsidered when deciding the right of a child to inherit are those which the law Fecognizes and that is to say, one must be either biological farther or acceptably father of the child. In our case both conditions are present that is to say the deceased was the acceptably biological father of the three children he begot with the appellant. This fact was never contested by the respondent during the trial and actually he conceded it in this court. The respondent only contention is that because his father lived a Christian life and died and buried a Christian, his purported second marriage was a nullity tO and the resultant issues are therefore illegitimate. In order to be able to determine the legitimacy or illegitimacy of the appellant’s children she ‘begot with the deceased thoroughly, let me deal albeit briefly, with the issue of the alleged marriage between the appellant and the deceased. There can be no doubt that under the provision of Section 38(1) (c) of the Law of Marriage Act [Cap 29 RE, 2002], a ceremony purporting to be a marriage is a nullity if either party is incompetent to marry by reason of an existing Qo Marriage contracted under Sections 10(1)(a) and 15(1) of 9the same Act which provides that no man while married by monogamous marriage, shall contract another marriage. The respondent’s argument is that the purported marriage between the late John Cosmas Magesa and the appellant Elizabeth Mohamed was a nullity because of the subsisted marriage between his mother Juliana Gerald and his deceased father John Cosmass Magesa. Juliana Gerald gave her testimony before the Primary court contending that she was married as a lone lawful wife of the deceased, but she did not tender any document in terrhs of a marriage certificate or tO otherwise indicating that her marriage with the deceased was monogamous and subsisting therefore prohibiting the deceased from contracting another marriage with the appellant. Although this was not seriously challenged during the trial but in absence of such evidence and bearing in mind that the other party to that contract (the late John Cosmas) has. demised therefore cannot testify, it was wrong for the District court to declare a nullity the purported marriage between the deceased and the appellant. It was not enough in my view, for: Juliana to tell the court orally that she was married to the 20 deceased in accordance with the Christian rites without Substantiating whether her marriage with the deceased was 1046. monogamous marriage or not or whether Christian Marriage is the same thing as Monogamous Marriage contemplated under the provisions of Section 15(1) of the Law of Marriage Act. Although the main Contentious issue there was not whether the deceased was legally married to the appellant or whether in view of his alleged subsisted marriage with Juliana Gerald he could legally marry the appellant, but whether or not the children he begot with the appellant are entitled to inherit in his estate, yet as I have observed hereinabove, it was \) pertinent for the trial court to investigate the status of the deceased's association with the two women so as to enable it to properly determine the status of the appellant's children vis-a-vis their “father’s estate” the way it wanted to do it. If we take for instance that on the evidence on record the deceased had a subsisting Christian marriage with Juliana Gerald, the logical question that follows would be whether that alone could be sufficient ground to nullify his purported Marriage with the appellant and therefore make the children he fathered with her illegitimate. Rv 11~47- As stated hereinbefore, strictly so speaking the issue of Christian marriage was not an issue in this matter during the trial. But at this juncture I feel constrained to, first of all, deal with this point which to my mind is causing great confusion in our courts of law, and secondly, discuss the rights of children born out of a relation like that of the deceased and the appellant vis-a-vis their parents, relationship. In my view marrying in accordance with ones religion belief is more of religious faith than legal. Under the law lo a person has absolute right on the matters related to the religion she/he professes. This right is protected by the Constitution of the land. I gather this from the provision of Article 19(1) of the Constitution of the United Republic of Tanzania which provides that: - “every person has the right to: freedom of conscience, faith and choice in matters of religion, including the freedoin to change religion or faith”. . efore that marrying in accordanceg}D It goes without saying ther Is within the term “matters of with ones religious belief fall 12-48- religion” which are protected by our Constitution and are outside the Jurisdiction of any court of law. For instance, courts of law cannot inquire as to why a person has decided to change his religion faith or why he is not observing some or all of the norms of his religion. As stated earlier, Article 19(1) of the Constitution of the United Republic gives rights and freedom to a person to choose in matters of religion and/ or even to change his religion faith completely. I take it that "right to freedom to faith and choice in matters of religior’’ envisaged by Article 19(1) of the Constitution includes right to to observe or not to observe some or all of the religious norms. For instance a Moslem has freedom and right to observe or not to observe the norm that requires him to make five prayers in a day and his decision cannot be challenged in any court of law. because this freedom and right is protected and guaranteed by our Constitution. He however, has no such freedom or rights under the Quran. Similarly, a Christian like the late John Cosmas Magesa had the right and freedom under the Constitution of this country to observe or not to observe the Canon norm of one man one & wife. That freedom cannot be challenged in the court of law. That freedom, however, cannot available under the Canon law 13-44- because there is a verse that when Jesus was asked by the Pharisees to tell them whether their law allows a man to divorce his wife Jesus answered with a question that "what law did Moses give you?” and when they answered that” Moses gave us permission for a man to write a divorce notice and send his wife away” Jesus said to them that; “Moses wrote this law for you because you are so hard to teach. But in the beginning at the time of creation God made them male and female...and for this reason a man will leave his father and unite with his wife....”. When the disciples asked Jesus about this matter later in the evening Jesus said to them “A man who divorces his wife and. marries another woman commits adultery against his wife in the same way a woman who divorces her husband and marries another man commits adultery” [Mark 10: 2-11]. Thus, in canon law by marrying the appellant the deceased was committing adultery, but that is not the avenue of this 20 court. I think the deceased's decision not to observe that norm could only be challenged by Juliana Gerald (his wife) who was 14—So- privy to their contract of marriage and the proper forum would have been in the Canon Court. Otherwise that right could be available to her under the Provisions of Sections 9(1) and (2) 15(2) and 38(1)(c) of our Law of Marriage Act and upon producing a certificate of marriage certifying that their marriage was not only a Christian, but also a monogamous marriage contracted as per Section 10(1)(a) of the Law of Marriage Act. If the deceased married Juliana Gerald in accordance with Christian rites as the respondent testified during the trial and LO repeated it in this court, and if marriage under Christian laws prohibits another marriage while the first marriage is subsisting as he would love this court to believe, that is squarely the matter for the Church’s Court to decide. Only Canon courts have jurisdiction to entertain matters of faith and administer prescribed sanctions. I think I need to be a bit elaborative in this issue because it has been a common practice for our courts when dealing with issues touching marital status of parties to assume that where the parties are married according to Christian rites, the 20 marriage must be monogamous and where parties are married 15-5A- in accordance with Islamic law, their marriage must be Polygamous one. That, in my view is not always the case and Courts should never make findings on assumption where there are specific prescribed procedures for proving the alleged facts. In law, the existence and status of a marriage could only be proved by production in court a certificate of marriage to that effect or by tendering evidence of marriage as prescribed by Section 55(a) of the Law of Marriage Act. The said law says:- “The following documents shall be admissible in evidence lo without proof in any court or before any person having power under any written law receive evidence as being prima facie evidence of the fact recorded therein-: (a) A marriage certificate issued under this Act or any law in force before the commencement of this Act: It is on this basis I find that in law Christian marriages and monogamous marriages contracted under Section 10(1)(a) of the Law of Marriage Act are not necessarily the same thing. My opinion is that courts of law in this country have no jurisdiction to and should not inquire into and determine 20 disputes involving Christian marriages in the real sense of the term because this may normally involve matters of observing 16-6Q- or not observing religious wom For example, it cannot be a duty of the court of law to question a Christian man why he has failed to observe a norm that requires a man to marry one woman only. This is purely a religious issue which can be inquired by Canon courts. Courts of law should confine themselves and only inquire and determine marriages contracted strictly under the Jaw of Marriage Act regardless whether they are Christian or non Christian. The respondent does not accept this view. His main argument as I said earlier is that his father lived a Christian life LO and he died a Christian and was buried a Christian. As a Christian to him, marriage was a union of a man (his father) and one woman (his mother Juliana Gerald) to the exclusion of all others. He says that he cannot include the children of the appellant in list of persons entitled to inherit from his estate because by so doing he will be committing a sin according to Christian norms. I agree with the respondent's contention that, that is and should remain the definition of marriage ‘as far as Christian faith -is concerned and a definition of monogamous marriage as far as 20 Section 9 (2) of the Law of Marriage Act is applicable. However, as I have demonstrated hereinbefore, while a Christian v7-53- marriage is a moral obligation governed by Christian norms, Monogamous marriage under Section 9(2) of Law of Marriage Act is a contractual obligation governed by that law. Under that law Juliana Gerald could have rightly challenged the deceased’s act to marry another wife while their monogamous marriage was subsisting. It would appear to me that as of now the only avenue to challenge the deceased’s “immoral” conduct which is related- to his religious faith will be on the day of resurrection and that is before the God Almighty where both parties can be heard as \2 we are told that the deceased will raise from death and therefore be able to appear and argue his case. Now back to the contentious issue before me which is whether or not the appellant's children are entitled to inherit from the estate of their deceased’s farther, I have carefully read the authorities cited and relied upon by the District Appellate court in its decision. That is the decisions of the Court of Appeal in the case of Violet Ishengoma Kahangwa and Jovin Mutabuzi Vs The Administrator General and Mrs. Eudokia Kahangwa [1990] of Seif Marare Vs Mwada ope as 20 Oe aaawa Salum [1985] TLR 253, where it was held inter alia that a putative fa ther’s obligation to 18—S- nal and ends with his death and that it does not survive him and cannot attach to his estate, his illegitimate children is perso Tam mindful of the fact that this court is bound by the decisions of the Court of Appeal. However, I entertain doubt whether in view of the Provisions Sections 9 and 10 of the recently enacted Law of Child Act, and Article 3 of the United Nations Convention on the Right of the Child (which is ratified by our country), the decisions in Kahangwa’‘s and Mwadawa’s cases (supra) are still good law. o In Kahangwa’s case for instance the Court of Appeal observed that:- “We must say that we have much sympathy for Mr. Rutashobya’s further view that the two legitimate children should be held to qualify for distribution on the ground that their deceased father had a Moral, as distinct from legal, obligation to maintain them. However, we are regrettably of the view that in the Present state of our law on the subject such a View is equally So untenable...”The Court went on and stated con Not called upon to construe the term “child” in any law governing distribution of the estate of a deceased person, but to apply the Bahaya Customary Law as set out in GN No. 436 of 1963 and applied to Bahaya vide GN No 605 of 1963. Paragraph-43 of that law prohibits illegitimate children from inheriting from the father’s side where the father died intestate. The Court thus, held that the facts of Kahangwa’s case fall squarely within that provision and because the two children Reynold and Diana were obviously illegitimate, they were not 10 entitled to the estate of their deceased father under the Bahaya Customary law. That was in 1990 and as I stated earlier, it was before the Law of Child Act 2009, was promulgated. Looking at the observation of the Court of Appeal in Kahangwa’s case, one can un-hesitantly say that at the time of the decision of that case, there were still in our society traditional rejection; a customary means of exclusion of children said to be illegitimate. That custom for sure, was discriminatory and had adverse effects on the children dubbed &0 illegitimate children. The Bahaya Customary Law, which was 20applied in Kahangwa’s case (supra), excludes the tight to inherit from his father’s side a child born out of wedlock. That law simply excluded a human being called "Wegitimate child” from inheriting from his father’s side. The term “illegitimate child” is neither defined in our Law of Marriage Act, nor is it defined in the new Law of the Child Act, but Oxford Advanced Learner's Dictionary defines it as a child born of parents not married to each other and who is not allowed by the law or by the rules. I have no problem with the first definition (i.e. children born of parents not married to-each Ly other), but I think it is discriminative and inhumane to call a child born of parents who are not married to each other an illegitimate child which in essence means that he/she is an unlawful child. In my view the association of the parents may be illegitimate or unlawfully according to the norms of a given society and/or religion but the product of such association, that is a human being born as a result of such association cannot by any legal definition be illegal and/ or unlawful in a secular state like ours. Fortunately, the law makers in our country have discovered Qv that colonial mischiefs and have tried to combat such rejection by promulgating the Law of Child Act, 2009, The preamble to 21Ol that law states Clearly that it was enacted to give effect to International and Regional Conventions on the Rights of the Child. Tanzania ratified among other international conventions, the United Nations Conventions on the Rights of Child. Article 2(1) of the United Nations Convention on the Rights of Child requires state parties to respect and ensure tights set forth in the convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language religion....... birth or other status. wo Sub-Article (2) of the same Article provides that:- “State parties hall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities expressed opinions or beliefs of the child's parents, legal guardians or family members”. And under Article 3 of the said Convention State Parties are required to ensure that in:- “all actions concerning children, whether undertaken by public or Private social welfare, , 2